Chapter 6 - Access to Judicial Review Part III

2 Statutory Preclusion of Judicial Review Congress has the power to limit judicial review of agency actions Subject to constitutional limits What if Congress is silent on the availability of judicial review in a particular statute? Does "Committed to agency discretion" mean that the action is not subject to judicial review?

3 Is there Judicial Review at All? Abbott Labs is an early foundational case in administrative law. We read Abbott Labs for two issues. The first is whether there is any judicial review at all, in the absence of specific congressional authorization. The second issue is the timing for review, i.e., was the issue ripe?

4 When is Review Appropriate? (Prelude to the later ripeness discussion) Should the plaintiff be able to get review of an agency regulation before the agency takes enforcement action? What is a facial review of a statute? What are the problems with a facial review? How are these similar to the problems of pre- enforcement review?

5 "As Applied" (Post-Enforcement) Review Why does the agency prefer post-enforcement review? What happens with compliance? What additional information does the court get when it requires the plaintiff to wait until there is enforcement? What if the penalties are so Draconian that no one will risk enforcement?

6 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) - Is There Review? This was a dispute over the authority of the FDA to require the generic name on prescription drug labels The plaintiffs claimed that the FDA exceeded its statutory authority FDA said that this was not reviewable because the enabling act provided for specific review of other actions and this was not included in the list The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

7 Block v. Community Nutrition Institute, 467 U.S. 340 (1984) Clarified Abbott's policy on reviewability Consumers wanted to challenge rules under the milk price support law, which was intended to protect milk producers The court found that Congress had specified who could appeal these orders and how Coupled with the purpose of the act, this was enough to show intent to prevent consumer claims This might also be seen as a zone of interest question.

8 Does Committed To Agency Discretion By Law Mean No Judicial Review? 5 U.S.C. § 701(a)(2) (§ 701, et seq is judicial review) (a) This chapter applies, according to the provisions thereof, except to the extent that - (2) agency action is committed to agency discretion by law. This is related to the political question doctrine The courts recognize that agencies are charged with making policy under the direction of the legislature and the executive branches The proper review of a policy choice is through the ballot box

9 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) Congress said no federal money to build roads in parks if there was a "feasible and prudent" alternative The Secretary authorizes a road in a park and tells plaintiffs that it is within his discretion and cannot be reviewed by the courts Does the Court have a standard to review this decision, or is it a pure policy choice? The court found that "feasible and prudent" provided adequate law to guide judicial review Committed to agency discretion was held to be very narrow, unless specified by statute

10 Heckler v. Chaney, 470 U.S. 821 (1985) - Lethal Injection Case The FDA Act directs the agency to require that drugs be approved for a specific use before they can be sold in interstate commerce The agency does not police the use of drugs for unapproved purposes, once they are approved for at least one use The court rejected a challenge to this, say this was classic prosecutorial discretion, which an agency did not have to justify. Later cases question whether the FDA has the authority to regulate post-sale use.

Decisions on Rulemaking Petitions The court distinguished a decision to refuse to amend a rule as different from prosecutorial discretion to do enforcement, allowing judicial review of these decisions. This review is implicit in the statutory provision for rulemaking petitions. American Horse Protection Assn., Inc. v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) 11

12 Webster v. Doe, 486 U.S. 592 (1988) National Security Act allows CIA employees to be fired without due process or judicial review Court says this is within congressional power, especially for national security Lead to controversy with Homeland Security Act Court says that the plaintiff's constitutional law claim can be reviewed because no agency is above the constitution Dissent says this makes no sense because it undermines the agency discretion.

13 Lincoln v. Vigil, 508 U.S. 182 (1993) Indian health service has the discretion to decide how to spend certain funds This is a classic earmark - funds with a non-statutory direction on how to spend them. Court says this cannot be reviewed, it is a classic policy choice However, whether the policy has to be announced through notice and comment versus a simple policy statement, is reviewable The procedure may be reviewable, even if the policy is not.

Problems of Timing Doctrine of Finality Doctrine of Exhaustion Doctrine of Ripeness 14

15 Is There a Final Agency Action? APA - 5 USC 7045 USC 704 Similar to the rules on appealing orders by trial judges Bennett v. Spear, 520 U.S. 154, (1997) It must be the consummation of the agency process It must affect legal rights or have legal consequences

16 Federal Trade Commn. v. Standard Oil Co. of California, 449 U.S. 232 (1980) FTC finds that Standard Oil is engaging in anticompetitive practices Standard wants to appeal this Can be used in private antitrust actions Court says this alone does not have legal consequences Standard must wait until the agency brings an enforcement action

17 National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971) Agency opinion letters - are they just restating the law, or do they change substantive rights? Who are they final for? This was to an association explaining how the agency would interpret a new law Detailed explanation From the secretary's office Not based on individualized facts In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights. Should this have been a rule?

18 Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991) This is a classic question - even if an opinion is final action as to the requestor, does it apply to others? The opinion was to an individual party, based on that party's specific facts. These are like IRS letter rulings and OIG opinions The plaintiff was a third party who wanted to challenge the opinion as it would be applied to it. The court found that this was not a final agency action, at least as to other parties.

19 Franklin v. Massachusetts, 505 U.S. 788 (1992) MA wants to contest the method the Department of Commerce used to correct the census numbers Why does this matter? The President is charged with determining the final count, and Congress does the reallocation of representatives The court found that the report from Commerce was only a recommendation to the President Still an issue: who do you count?

20 Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998) This was an opinion letter to two specific parties about whether they were subject to the joint employer doctrine The letter said they were, and that they were now on notice so they would be subject to the penalties for a willful violation The court found this was a final agency action as to the parties because it required an immediate change in behavior This was influenced by the harsh results

Finality Wrap-up Is the agency action directed to your client? If not, what is your argument as to why it affects your client’s interests? Is it complete, or an intermediate action? Does it have legal consequences, i.e., will it require your client to change its behavior? Does it require an immediate change? 21